The appellant appealed his summary convictions for impaired driving and refusing to provide a breath sample.
He argued the trial judge misapprehended medical evidence regarding his uncontrolled diabetes and erred in finding no breach of his s. 10(b) Charter right to counsel of choice.
The Superior Court found the trial judge erred by placing the burden on the appellant to prove he did not waive his right to counsel of choice, rather than on the Crown to prove a valid waiver.
The appeal was allowed in part; the refusal conviction was set aside and a new trial ordered, but the impaired driving conviction was upheld using the curative proviso.
